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My Lords, decades ago my noble friend Lord Steel of Aikwood said that the British constitution was not worth the paper it was not written on. Now we have a more dysfunctional constitution than many of us have ever seen. I do not concur with some of the sentiments expressed to the effect that this wonderful unwritten constitution kind of dynamically works. It is in danger of failing to work and letting us down very badly. If our Parliament does not understand that and start to think about it, we may find that centuries of evolution can be crushed in a very short time.
I want to refer to two different referendums that we had on constitutional issues. In the Scottish referendum on independence there was at least a semblance of a framework. I will claim some credit: it was during a period of coalition, with a Liberal Democrat Secretary of State for Scotland who recognised that there needed to be a shape to that referendum. The shape took the form of the Edinburgh agreement, where all the parties agreed on the principles and the outcome, and that it would be accepted as a once-in-a-generation decision. That was not enforceable but was nevertheless part of the agreement.
It also forced those calling for the referendum—the nationalists—to at least set out, in a very long White Paper, the basis of what kind of independence they were asking the people to vote for. Much of the detail of that White Paper was challenged—and was very challengeable—but it was at least a framework. It forced them to say things such as, “We would operate with the pound sterling”, which exposed the fact that, as we had no central bank and required the authority of the remaining part of the United Kingdom, that was a basis on which independence would not fly, and almost certainly determined the outcome of the referendum, which was to remain part of the United Kingdom. If a process even vaguely approaching that had taken place with the Brexit referendum, there might have been a difference in the context of the debate and the outcome.
History will treat David Cameron very harshly, because to put a question to the people that involved an answer which you had no idea how you could deliver was the most appallingly irresponsible and cavalier, short-term political approach to the destiny of our nation. History will not forgive him for that. We now face a situation in which the majority of people in Parliament and in Government believe that we are embarked on a decision that will deeply damage our country for many years—if not generations —to come. I do not mean just economically: I mean politically, in terms of our standing and influence in the world.
It is essential, therefore, that we look at how we are abusing our constitution, and if we use instruments such as referendums we find ways of putting them into proper contexts. They should probably be reserved mostly for constitutional issues, and a two-stage process may be the only way you can make them work where there is a binary decision. That involves asking people in broad terms which way they want to go, but with a clear undertaking that, having set out the course, the mechanism will then be developed before they are again asked, “Is that still something we should follow through?” I find it ironic that of all the parties in the country at the moment, the one that is most enthusiastic about campaigning to give people a referendum on the outcome is my own party, the Liberal Democrats when we are the party that least needs the referendum. We were completely united from start to finish that it was the wrong thing to do and we should not do it. It is the other parties which are split and may have to go back to the people to get a resolution of their own difficulties, because they are not capable of resolving them themselves. There just seems to be an irony about that.
The position that we need to develop is: if we are routinely to use referendums in future as a means of determining a position, the first thing we have to be clear on in law is whether it is a consultative, advisory referendum or a binding referendum. If it is the latter, before the question is put you have to be able to tell people what the implications or consequences of either of the answers are in detail. The argument we are now faced with is that having had a referendum, anybody who suggests that we should do anything other than implement that referendum—even though we have no idea in what way to do it—is frustrating the will of the people and despising the democratic process. I think it is offensive to suggest that. I do not blame people who voted leave in the context. They were told lies and left to make all kinds of judgments. They were voting for all kinds of reasons, as has been said. It is not my view that they got it wrong, or anything else. Some of them might be absolutely certain that they know what they want and would vote for it again.
However, I believe categorically that when we know that the nation is facing a serious potential mistake, the very least we have to say to people is, “First, we have to be able to agree a course of action, so if we do not have one we cannot have a referendum”. But we are all faced with a situation where literally none of us has the slightest idea what will happen to our country next week, next month or by next March. Yet we turn around and claim that we represent the people and can somehow or other deliver for them, and that we are bound to implement their decision, even though we do not know what it means, because we did not think about that when we asked them the question.
The noble Lord, Lord Higgins, is absolutely right to have initiated this debate. It is essential that the country thinks hard about how we work our constitution and use instruments such as referendums in ways that do not take our country from disaster to catastrophe.